Skip to main content

Full text of "Imberto v. Vic and Tony Coiffure, Board of Inquiry, April 1981 BOI 129"

See other formats


THE ONTARIO HUMAN RIGHTS CODE, 
R.S.O. 1970, Chapter 318, as amended 



n ONTARIO 

ministry of labour 

APR 1 1981 

HUMAN RIGHTS 
COMMISSION 



IN THE MATTER OF the complaint made by Mr. Iberto Imberto 
of Toronto, Ontario, alleging discrimination in employment 
by Vic and Tony Coiffure and Vince and Tony Ruscica, 
678 Kennedy Road, Scarborough, Ontario. 



A HEARING BEFORE: 



Professor John D. McCamus 
Appointed a Board of Inquiry into the 
above matter by the Minister of Labour, 
The Hon. Robert Elgie, to hear and decide 
the above-mentioned complaint. 



Appearances : 

Ms. J. Minor Counsel for the Ontario Human Rights Commission 

and Mr. Iberto Imberto 

Mr. E.A. Benevides Counsel for Mr. Vince Ruscica 



I 



The Complaint brought before this Board of Inquiry by Mr. Imberto 
and the Ontario Human Rights Commission rests on an allegation that 
the respondents have refused to consider Mr. Imberto for employment in 
their hairdressing business for the exclusive reason that he is a male 
person. The Complaint (exhibit 2) alleges that the actions of the 
respondent in this respect amount to a contravention of section 4(1) (a) 
and 4(l)(b) of the Ontario Human Rights Code. Those sections provide, 
in part, as follows: 

4. (1) No person shall, . . . 

(a) refuse to refer or to recruit any 
person for employment; 

(b) dismiss or refuse to employ or to 
continue to employ any person; 

• • • 

because of race, creed, colour, age, sex, marital 
status, nationality, ancestry, or place or origin 
of such person or employee. 

These provisions of the Code represent a strong legislative commitment 
to the objective of eradicating the effect of discriminatory attitudes 
in the allocation of employment opportunities within the Province of 
Ontario. As the Code indicates in its preamble, ". . . it is public 
policy in Ontario that every person is free and equal in dignity and 
rights without regard to race, creed, colour, sex, marital status, 
nationality, ancestry, or place of origin." In seeking to eliminate 
discrimination on the ground of sex in the employment context, the 
evident purpose of the Code is to ensure equality of opportunity and to 



9 




- 2 - 



eliminate unjust barriers to employment based on biased attitudes 
towards the members of a particular sex or stereotyped attitudes 
toward the employment related capacities of the members of a particular 
sex. 

Although it may well be that the principal concern leading to the 
enactment of measures against sexual discrimination in the employment 
context related to prejudicial attitudes restricting the employment 
opportunities of women in the labour market, it is evident that the 
Code in its terms is so designed as to protect members of the male sex 
from discriminatory employment practices as well. To deprive an 

individual of an employment opportunity simply for the reason that he is a member 

of the male sex would thus normally constitute an offence under the 
provisions of section 4 of the Code. 

The Code further provides, however, that certain of the prohibited 
grounds of discrimination, sex included, may play a role in decisions 
relating to employment where the ground in question constitutes a 
legitimate qualification and requirement for the occupation question. 
Section 4(6) stipulates as follows: 

4. (6) The provisions of this section relating to 

any discrimination, limitation, specification or 
preference for a position or employment based on 
age, sex or marital status do not apply where age, 
sex or marital status is a bona fide occupational 
qualification and requirement for the position or 
employment . 



In the present case, it has been argued on behalf of the respondents that 



t 

• 



I 



- 3 - 



the defence of bona fide occupational qualification has been established 
either on the basis of the attitudes of the customers of the respondents' 
business or because of the unwillingness of present employees of the 
respondents to continue employment with a male co-worker. The proper 
interpretation of section 4(6), therefore, has become a matter in issue 
before this Board of Inquiry. 



II 



The facts underlying the present complaint are not in substantial 
dispute between the parties. In February of 1979 an advertisement was 
placed in the Toronto Star by the respondents in the following terms: 



"HAIRDRESSER experienced, $175.00 to start, 
267-9312 Scarboro." 



Although the precise legal form in which the hairdressing business 
known as "Vic and Tony Coiffure" was not placed in evidence before this 
Board of Inquiry, Mr. Ruscica indicated in evidence that he and his wife 
were co-owners of the business (Transcript, P. 85) . The beauty salon 
operated as "Vic and Tony Coiffure" caters to a female clientele* and 
over recent years has had a staff of four to five hairdressers, including 
Mr. Ruscica' s wife, Tony Ruscica. From the evidence led before this 
Board of Inquiry, it would appear that Mr. Ruscica performs the managerial 
functions associated with this business but spends very little of his 
time on the premises. Mr. Ruscica operates another business at a location 
a few doors away from the beauty salon. Mr. Ruscica* s wife, however, 



r 



• 




- 4 - 



works full-time on the premises of the beauty salon as a hairdresser. 

The complainant, Mr. Iberto Imberto, is an experienced hairdresser. 
Mr. Imberto was first apprenticed as a hairdresser in 1960 and has had 
a career of some twenty years working as a hairdresser in various 
beauty salons, primarily in Scarborough, Ontario. In 1965, Mr. Imberto 
opened his own salon in Scarborough and operated this business for 
approximately thirteen years. After selling this business in 1978, 
Mr. Imberto was hospitalized for medical treatment and after a period 
of recuperation and vacation, was ready to return to the labour market 
in January of 1979. 



Mr. Imberto was interested to seek employment in a salon in the 
Scarborough area operated by someone else and accordingly, responded 
to the advertsement placed in the Toronto Star by Mr. Ruscica. The 
following account of what transpired in the course of Mr. Imberto' s 
attempts to pursue this employment opportunity is not substantially 
challenged by the respondents: 

Q. ... When you saw this ad, Mr. Imberto, what did 
you do? 

A. I phoned. 

Q. All right, and you phoned the number. 

A. Yes. 

Q. In the Ad? 

A. Yes. The person 



- 5 - 



Q. Yes? Who answered? 

A. A girl answered and I asked to talk to the manager. 
Q. All right. 

A. The manager or owner. He came to the phone and 
said the firt time, "I am sorry, we need a girl" 
and I said, "Fine, thank you very much", and that 
was it. On the second week, the second time I phoned, 
I had the same person answering my questions and he again 
said, "I am sorry, we need a girl. We can't use you", 
and so on. So, I phoned again the third week and a girl 
at that time answered the phone and said, "T am sorry, 
we have already told you that we need a girl, not a man", 
and on the fourth, I don't remember if it was the fourth 
or fifth time I phoned since — because the ad appeared 
every week. 

Q. Yes? 

A. I phoned again but by this time I was getting desperate 
because I needed money. 

Q. Yes? 

A. The gentleman I was talking to, I don't recall if it 
was Vic or Tony 

Q. Did you ask for anyone when you phoned that time? 

A. I asked for the manager or the owner and I was talking 
to the owner. 

Q. All right. 

A. He said he does not need a man, he needs a girl and I 

asked him if he knows about the Human Rights and he says 
he doesn't care it is his own business and he does what 
he wants. 

Q. What did he do then? 

A. Then, I advised him he cannot do that because there is 
a law that does not permit discrimination against me and 
at this point I asked him again if he wanted me to come 
up and try me out and see what I can do, since my 
experience has been based on 20 years. 

Q. Yes? 

A. He said the only reason he wanted me to come up to his 
place was for one simple reason, so he could give me 
something, as I recall. 



- 6 - 



The only serious disagreement between the complainant and the respondent 
is with respect to this latter incident. Mr. Imberto interpreted Mr. 
Ruscica's remarks on this occasion as being mildly threatening in some 
way. Mr. Ruscica insists that his remarks were misinterpreted. Mr. 
Ruscica's version of this exchange is that in response to Mr. Imberto' s 
request that he be informed of the address of Mr. Ruscica's salon, Mr. 
Ruscica replied "Come over and pick it up" (Transcript, p. 24). On either 
version of the facts, then, Mr. Ruscica's reply was, if not seriously 
intended as a threat, certainly rather abrupt and uncooperative. 

Mr. Ruscica, in his testimony before this Board of Inquiry, conceded 
that Mr. Imberto 's expressions of interest in the hairdressing job were 
rejected by him because he had determined to employ only female hairdressers. 
Mr. Ruscica indicated that this decision was taken in concert with his 
wife and offered what were, in effect, three reasons for adopting this 
employment policy. First, Mr. Ruscica testified that he had had an 
unfortunate experience with a male employee in the past and that for 
this reason he had resolved to never employ male hairdressers in the 
future. Secondly, Mr. Ruscica indicated that most if not all members 
of his staff did not wish to work with a male co-worker and would resign 
if a male applicant were given the job. Although it is not clear from 
Mr. Ruscica's evidence that he saw this as a separate ground justifying 
the policy of employing males only, the testimony of two employees of 
the respondents indicated that at least some of the current clientele 
or the hairdressing studio would not feel comfortable having their hair 
done by a man (Transcript, p. 82). Counsel representing the respondents 
placed some reliance on this evidence of customer preference as providing 



- 7 - 



a basis for invoking section A (6) of the Code. 

The incident involving a previous male employee of Mr. Ruscica 
was referred to by him somewhat obliquely on a number of occasions 
during his testimony before this Board. These references appear to 

confirm an account of this incident offered bv Ms. Kim Bernhardt, a Human 
Rights Officer on the staff of the Ontario Human Rights Commission who 

testified with respect to conversations which shp. had with Mr. Ruscica 
in which he indicated the basis for his decision not to employ 
male hairdressers in the following terms: 



Q. What reason did he give to you? 

A. He gave a few. The major one as he expressed it, 
was an experience he had had in his salon with a 
male employee, he said approximately five or six years 
earlier to that point in which he and a customer on 
a separate occasion came upon this male employee 
and a female employee kissing in one of the back 
rooms and possibly smoking Marijuana. He also 
expressed the reasoning that he believed his 
customers would be suspicious of his having a 
male employee on the premises because they would 
presume that sexual relations would go on between 
the male and female employees. (Transcript, p. 19) 



Mr. Ruscica indicated in his evidence that the previous male employee 
had also been reluctant to carry out certain responsibilities associated 
with the job of hairdresser and that this constituted an additional 
reason for not wishing to hire male employees. This point is made in 
the following excerpt from Mr. Ruscica' s testimony: 



t i 



- 



- 8 - 



Q. You would agree with me, Mr. Ruscica, that a 
man can do the job as well as a woman? 

A. He could do it, but he would need to be pushed, 
but a woman does not need to be told what to do. 

Q. How would you know that Mr. Imberto would have to 
be pushed? He has his own salon now. He does 
know how to run the business. 

A. Well, a man is not used to polishing furniture 
or sweeping the floor. 

Q. What if Mr. Imberto had swept the floor? Did you 
ask him? 

A. No, but I am sure because it happened to me five 
or six years ago, when I had the other man in 
there. He never wanted to sweep the floor. 

Q. Mr. Ruscica you had a bad experience with one man 
once, right? 

A. And I don't feel like having it again. (Transcript, pp. 90-91) 



Although Mr. Ruscica placed considerable emphasis in his testimony 
on the problems resulting to his business if he were to lose a number 
of his current employees, it was apparent from his testimony that he 
had reached an independent view that the hiring of a male employee 
would not be a sound idea. The following exchange occurred in a 
cross-examination of Mr. Ruscica: 



Q. I suggest to you, Mr. Ruscica you could hire a 
man, especially a man who had his own clientele 
and you could replace anybody who quit and still 
keep up your business. 

A. I prefer to sell it, not to run that way. 

Q. As a matter of preference? 

A. Right. 

Q. So you just don't want a man there? 



- 



- 



- 



- 9 - 



A. No, I keep that beauty parlour as long as I can 
that way, but if there has to be a man working 
there I prefer to sell or just close the door, 
because as things are today it is very dangerous 
having a man and woman together working in the 
same place. (Transcript, p. 93) 

The two employees of the respondents who testified before 

this Board of Inquiry both indicated that they would 

resign if Mr. and Mrs. Ruscica hired a male co-worker for the beauty 

salon business. The first of these employees testified that she had 

worked as a hairdresser for twenty years and had never before worked 

with a male co-worker. She indicated that she preferred not to do so. 

She felt more comfortable working with women than men and further 

she would not feel comfortable asking a man to sweep the floor or do 

things around the salon. Further, she indicated that there was only 

one washroom on the premises of Vic and Tony Coiffure (Transcript p. 64-66). 

This employee indicated that if a male co-worker was hired she would quit 

and take her clients, numbering some fifty or sixty, with her (Transcript, 

p. 73). The other employee testified that she did not feel comfortable 

working with men and would quit her job if a male hairdresser was hired 

(Transcript, pp. 76-77). This employee indicated that the presence of 

men sometimes makes her feel nervous and afraid (Transcript, pp. 82-83). 

Mr. Ruscica testified that the other two female employees of the 

beauty salon had also indicated to him that they would resign if a male 

hairdresser was employed (Transcript, pp. 86-87). There was thus 

considerable evidence led before this Board of Inquiry to the general 

effect that the present members of the staff of the beauty salon resisted 

the idea of employing a male hairdresser and that some of them, at least, 

felt so strongly on the issue that they would resign their positions. 



€ 



- 



- 



r 



- 10 - 



Mr. Ruscica suggested that if all of his female employees quit he 
would be forced to close his business (Transcript, p. 87). 

The evidence led before this Board of Inquiry pertaining to the 
question of customer preferences is more ambiguous in nature. Although 
both employees who testified indicated, to some extent, that their customers 
had a preference for female hairdressers, it was not established in evidence 
that the same customers would object to the idea of a male hairdresser 
working in the same premises as the female hairdressers whom they 
patronize. Moreover, it was not established that there were signficant 
numbers of customers who could be said to be customers of "Vic and 
Tony Coiffure" rather than patrons of particular hairdressers and that 
such customers would be offended by the idea of a male hairdresser 
working on the premises. 

For the foregoing reasons, then, Mr. Imberto's attempt to apply 
for the advertised position was rejected out of hand. Mr. Imberto 
continued to search for employment and ultimately determined that he 
would again open his own business. This he accomplished seven weeks 
after the date of filing the complaint with the Ontario Human Rights 
Commission with respect to the present matter. Accordingly, Mr. Imberto 
seeks compensation for the amount which he would have earned during the 
seven week period as an employee of Vic and Tony Coiffure, subject 
to a deduction of Three Hundred Dollars representing money which he 
earned on a part-time basis during that period. In addition, it has 
been argued on Mr. Imberto's behalf that the mental distress resulting 
from the treatment which he was accorded by Mr. and Mrs. Ruscica should 



- 



- 11 - 



be compensated for by an award of an additional Two Hundred Dollars. 

Ill 

As has been indicated above, quite apart from concerns Mr. 
Ruscica had with respect to the possible loss of some or all of his 
female employees, Mr. Ruscica had formed what might be described as 
an independent opinion with respect to the desirability of male employees. 
Before turning to consider the potential relevance of the attitudes of 
Mr. Ruscica' s female employees or the alleged attitudes of the customers 
of his business, it is necessary to consider the extent to which this 
independent attitude of Mr. Ruscica forms the basis for a finding that 
his conduct in refusing to consider an application from Mr. Imberto 
constitutes an offence under section A of the Code. 

First of all, it should be emphasized that Mr. Ruscica refused to 
entertain any information from Mr. Imberto with respect to his qualifications 
or past experience. Mr. Ruscica refused to consider Mr. Imberto for the 
simple reason that he is a member of the male sex. To prejudge Mr. Imberto 
in this fashion constitutes a clear instance of discrimination on the 
ground of sex. The concept of "discrimination" has been described by 
an American judge in the following terms: 

"Discrimination" means the act of making a 
distinction in favour of or against a 
person or thing based on the group, class 
or category to which that person or thing 
belongs rather than on individual merit. 
( Courtney v. The National Cash Register 
(1970), 262 N.E. 2d 586) 



r 



- 12 - 



Mr. Ruscica reached his discriminatory attitudes with respect to male 
hairdressers on the basis of the slenderest possible evidence - a previous 
unfortunate experience with a male employee. It is precisely this type 
of stereotyping or prejudgment of individuals which the Code attempts to 
eradicate under the provisions of section 4. Whatever difficulties Mr. 
Ruscica may have had with a previous employee, section 4 of the Code 
requires him to approach the prospect of appointing males in the future 
with an open mind and with a view to assessing fairly their credentials 
and qualifications. This Mr. Ruscica did not do in the present case. 

It must be noted, however, that Mr. Ruscica' s motive in refusing 
to entertain an application for employment from Mr. Imberto were somewhat 
mixed. In addition to his own reservations about employing males, it 
is his submission that he was confronted with the prospect of the failure 
of his business as a result of the attitudes of his existing employees. 
It is a reasonable interpretation of Mr. Ruscica' s evidence, and I so hold, 
that Mr. Ruscica was indeed influenced by both of these considerations 
in adopting a policy of refusing to employ male hairdressers. Assuming, 
then, for the sake of argument, that a defence under section 4(6) may 
be available to Mr. Ruscica with respect to some aspects of his motivation 
for discrimination, the question which arises is whether the independent 
discriminatory attitudes which he had provide a basis for a finding of 
a contravention of the Code where this independent attitude may be said 
to not constitute the sole motivation underlying the decision to discriminate. 

In this regard, it becomes necessary to determine the proper interpretation 
of the term "because" in section 4. Section 4(1) of the Code provides 



- 



- 



- 



r 



- 13 - 



that "no person shall . . . refuse to refer or to recruit any person for 
employment . . . because of . . . sex ..." It must be considered, then, 
whether one of the elements of a contravention of section 4 must be that 
the individual was motivated solely or exclusively by the prohibited 
ground of discrimination. It is my view that the requirements of 
section 4 would be met in any case where the discriminatory attitude in 
question forms some part of the basis for the decision to refuse to 
extend an employment opportunity. What section 4 attempts to secure, 
I would suggest, are employment decisions based entirely on non-discriminatory 
factors. Thus, a contravention would occur, in my view, whether the 
discriminatory factor proved to be the main motivation, or an ancillary 
consideration or simply one of many reasons for the decision, regardless 
of the priority given to any of the other reasons. 

Although there appeared to be no Canadian cases decided directly on 
this point, support for this view can be drawn from decisions of Canadian 
courts dealing with analogous provisions of the Canada Labour Code, R.S.C. 
1970, c. L-l. Section 1 of the Labour Code provides as follows: 

101 (3) No employer, and no person acting on behalf 
of employer, shall 

(a) refuse to employ or to continue to 
employ any person or otherwise 
discriminate against any person in 
regard to employment or any term or 
condition of employment because 
the person is a member of a trade 
union, . . . .(emphasis added) 

The Court of Appeal of the Federal Court of Canada has held that this 
provision of the Code would be contravened if it were established that one 



- 



- 



- 



- 14 - 



of the considerations leading an employer to refuse to employ an individual 
was that the latter was a member of a trade union. A similar view was taken 
by the Ontario Court of Appeal in R_^ v. Bushnell Comm unicat io n s Ltd. (1974), 
1 O.R. (2d) 442 in interpreting another roughly analogous provision of 
the Canada Labour Code. 

On this basis, it follows that the fact that Mr. Ruscica was motivated 
in part at least by his own views with respect to the undesirability 
of male employees constitutes a sufficient ground for holding that Mr. 
Ruscica' s conduct in refusing to consider Mr. Imberto as an applicant for 
the advertised position amounts to a contravention of section 4 of the 
Ontario Human Rights Code. 



IV 



The evidence before this Board of Inquiry has established that at 
least two and possibly all of the current members of the staff of Vic and 
Tony Coiffure are opposed to the idea of working with a male co-worker 
and have threatened to terminate their employment if a decision to employ 
a male is taken by Mr. and Mrs. Ruscica. Mr. Ruscica has indicated in 
his testimony that he feels that if these threats were to be acted upon, 
he would be forced to close down his business. The question which must 
be considered, then, is whether employee attitudes of this kind provide a 
justification for an employer refusing to hire a member of the opposite 
sex. 



It must first be noted that the attitudes of these employees appear 



- 



- 



- 



- 15 - 



to have no basis other than an unwillingness to work with a male co-worker. 

The justification offered for this feeling by one of the employees was 

that male co-workers would not participate responsibility in such activities 

as cleaning up the premises. It must be said that this evidence is not 

completely convincing. The basis for this opinion appears to be the incident 

referred to by Mr. Ruscica as his unfortunate experience with a 

previous male employee. The evidence of Mr. Imberto, which I accept, 

is that he has always been a willing participant in such tasks and has 

not found that male co-workers with whom he has been associated have been 

reluctant to carry their fair share of burdens of this kind. 

A refusal to work with a male co-worker on this basis is simply an indefens- 
ible prejudgment or stereotyping of male employees which constitutes a 
discriminatory attitude. 

A more plausible explanation for the unwillingness of these employees 
to work with a male co-worker, suggested in their evidence, is that they 
simply do not feel comfortable working with men. Again, although one 
cannot fail to be sensitive to the concerns of an individual who suffers 
from feelings of this kind, the adoption of such attitudes results in a 
prejudgment with respect to the characteristics of particular individuals 
simply on the basis of their sex. However understandable such attitudes 
might be when viewed in the context of the psychological history of a 
particular individual, the prejudgment of individuals on the basis of 
sex rather than on the basis of their individual characteristics amounts 
to discrimination on the basis of sex. 

As the unwillingness or, indeed, refusal, of existing employees 



* 



- 16 - 



to work with a male co-worker rests on attitudes which are properly 

characterized as discriminatory in the requisite sense, the issue 

which must be addressed is whether an employer can justify discriminatory 

employment policy on the basis that the discriminatory attitudes of 

existing employees make it a virtual necessity for the employer to 

adopt such a policy. It is my view that no such justification would be 

consistent with the provisions and basic objectives of the Ontario Human 

Rights Code. To permit employers to raise a defence of this kind would 

obviously perpetuate the very practices and policies which the Code 

is designed to bring to an end. Thus, for example, if an employer were to 

be permitted to refuse employment to members of a particular racial group 

because his existing employees disliked members of that group, the Code's 

objective of eliminating discriminatory barriers to the employment of the 

members of that racial group would be frustrated. Nor is it material, 

in my view, that a particular group of employees appear to be so committed 

to their biases that they will quit en masse and create a very difficult 

situation for their employers. To give effect to such a defence only 

where such attitudes were widespread and deeply held amongst employees would have 

the peculiar and quite undesirable effect of rewarding an unusually 

prejudiced work force by excusing their employer from the application of the 

provisions of the Code. 

For the foregoing reasons, it is my view that the attitudes of co- 
workers cannot provide a basis for excusing discriminatory employment 
practices otherwise prohibited by the Code. It has been further suggested 
by counsel representing the respondents, however, that some room may be 
found for a justification on this basis within the meaning of section 4(6) 
of the Code which provides that the prohibitions relating to employment 



e 



- 17 - 



discrimination based on "age, sex or marital status do not apply where 
age, sex or marital status is a bona fide occupational qualification 
and requirement for the position or employment." It is argued, in effect, 
that where the existing work force holds discriminatory attitudes based 
on age, sex or marital status, requirements based on such discriminatory 
attitudes constitute a "bona fide occupational qualification and 
requirement." I am satisfied, however, that this is not a construction 
which this language can reasonably be asked to bear. Again, to interpret 
the code in such fashion as to perpetuate discriminatory attitudes of 
this kind would very substantially undermine the purposes which the 
Code is patently designed to serve. Moreover, the more obvious interpretation 
of this phrase, i.e. that it relates to types of employment where character- 
istics relating to age, sex or marital status bear some relationship to 
the individual's ability to perform the job in question, is one which is 
quite consistent with the overall scheme of the legislation. 

It should be emphasized that section 4(6) permits the "bona fide 
occupational qualification" exception to operate only in the context of 
the prohibited grounds of age, sex or marital status. Thus, by inference, 
the Code indicates that it is not possible to argue that the other 
prohibited grounds of discrimination, race, creed, colour, nationality, 
ancestry or place of origin, could constitute bona fide qualifications 
for a particular position. The construction of section A (6) contended 
for by the respondents would thus lead to the peculiar result that the 
attitudes of co-workers could not be taken into account in the context of 
race, creed or colour, for example, but could be taken into account in 
cases of sex discrimination. There is no reason to suggest that the 



v 



v 



- 18 - 



attitudes of co-workers is a problem of unusual dimensions in the 
context of the grounds of age, sex or marital status and it would be 
a perverse interpretation of the Code, in my view, to admit of their 
relevance in this context. Again, the most obvious interpretation of 
section 4(6) is that it pertains to situations in which an individual's 
age, sex or marital status has some bearing on his or her ability to 
perform the task in question. Although I am not aware of any case law 
either American or Canadian which considers the relevance of the attitudes 
of co-workers in this context, I note in passing that the U.S. Equal 
Employment Opportunity Commission has published interpretative guidelines 
relating to the interpretation of equivalent provisions of the American 
Civil Rights Act of 1964, 42 U.S.C.A. §2000E which indicate that the 
attitudes of co-workers or the employer would not warrant the application 
of the bona fide occupational qualification exception. See 29 C.F.R. 
§1604.2 (1978) 

In summary, then, the unwillingness of members of the current work 
force to work with members of the opposite sex does not relieve the 
employer from complying with the prohibition against sex discrimination 
set forth in the Code. The objective of the Code is to establish work 
environments in which members of both sexes establish normal and harmonious working 
relationships. The Code requires both employers and employees to 
accommodate themselves to this philosophy of equality of opportunity. It 
is very much to be hoped, of course, that employers will respond sensitively 
to the psychological difficulties of individuals who may find this accommodation 
a difficult process. In such situations, employers may wish to draw upon 
the educational and counselling resources of the Ontario Human Rights Commission. 



! 



- 19 - 



V 

Finally, it has been argued on behalf of the respondents that the attitudes 
of the clientele of the hairdressing studio provide some basis for the adoption 
of a policy of employing only female hairdressers. Again, in this context, 
reliance was placed by counsel for the respondents on the bona fide occupational 
qualification exception of section 4(6) of the Code. Again, it is my view 
that the bona fide occupational qualification exception cannot reasonably 
be interpreted so as to excuse a discriminatory hiring policy which has been 
adopted for the purpose of accommodating simple bias or prejudice on the 
part of the customers of a particular business firm. My reasons for reaching 
this conclusion are similar to those advanced for the conclusion that no 
defence is available to the employer who protests that he is merely accommodat- 
ing the discriminatory attitudes of co-workers. To permit the discriminatory 
attitudes of customers to provide a basis for granting an exception to the 
Code's prohibitions would very seriously undermine their effectiveness. One 
of the evident purposes of the legislation is to create an environment in which 
such attitudes will have no impact on the distribution of employment opportunit- 
ies within the province. Similarly, to reach the conclusion that such attitudes 
can be taken into account with respect to age, sex or marital status, would 
constitute a perverse interpretation of section 4(6). 

The relationship of customer preference to the bona fide occupational 
qualification exception is, however, a more subtle matter than that raised 
by the prejudices of co-workers. Thus, there is some American case law 
which suggests that customer preference may, in unusual circumstances, 
be a pertinent consideration. In particular, it has been argued on behalf 



- 20 - 



of the respondents that the d ecision of the United States Court of 
Appeals (5th Cir.) in Diaz v. Pan American Uorld Airways Inc. (1971) ^42 F 
2d 385, offers support for the proposition that customer preference can 
be taken into account as a basis for imposing sex as an occupational 
qualification, at least in cases where the failure of the employer to do 
so would result in his inability to carry on business. It would be useful, 
then, to examine the Diaz case in some detail. 

The plaintiff in the Diaz case was a male applicant for the position 
of flight cabin attendant with the defendant airline. The airline had 
adopted a policy of hiring only female employees for this position and 
attempted to defend this practice on the basis of a provision of the 1964 
Civil Rights Act setting out a bona fide occupational qualification exception 
which is roughly analogous to that of section 4(6) of the Ontario Code. 
The American provision, set out in section 703(e) of the U.S. Act, permits 
the use of criteria based on "religion, sex, or national origin in those 
certain instances where religion, sex or national origin is a bona fide 
occupational qualification reasonably necessary to the normal operation 
of that particular business or enterprise." Although it may be noted that 
the phrasing of the American bona fide occupational qualification exception 
is not precisely identical to section 4(6), it is not my view that the 
restriction that the qualification be "reasonably necessary to the 
normal operation" signals a significant difference in its interpretation 
or purpose. 

The defendant airline argued in the Diaz case that there were two 
possible grounds for supporting the application of the section 703(e) 
exception. First, evidence was led at trial to demonstrate that the 



( 



- 21 - 



airline's hiring policy represented a judgment based on adequate 
evidence that the performance of female flight cabin attendants was 
superior in the sense that they were better able to perform such 
non-mechanical aspects of the job as "providing reassurance to anxious 
passengers, giving courteous personalized service and, in general, 
making flights as pleasurable as possible within the limitations 
imposed by aircraft operations." Evidence, which the trial judge 
accepted, was also led at trial establishing that although it is true 
that some males are capable of performing with similar effectiveness, 
the most efficient criterion for identifying individuals who are likely 
to be successful in discharging these responsibilities is a female sex 
qualification. 

Secondly, evidence was led at trial which established that the 
customers of the airline preferred female flight cabin attendants. 
The airline argued that these preferences were not based on stereotyped 
attitudes or bias but rather reflected customer recognition of the 
superior abilities of female attendants with respect to the non- 
mechanical aspects of the job. 

Although the bona fide occupational qualification defence succeeded 
at trial, the Court of Appeals reversed this decision and held that 
neither of the above grounds warranted its application. With respect to 
the first ground - the suggestion that females perform the required tasks 
more ef f ectively - the Court of Appeals reasoned that although this might 
be true, the performance of the "non-mechanical tasks" of flight cabin 
attendants were not essential features of the service rendered by the 



- 22 - 



airline and thus it was not reasonably necessary for the airline to 
maximize its performance in this respect by discriminating against 
males. The Court suggested that such discrimination might be warranted 
where it was reasonable to believe that all or substantially all male 
applicants could not perform adequately but that this had not been 
established in the present case. If, as in the Diaz case, it was evident that 
some males could perform adequately, it was the Courtis opinion that the 
only circumstance that would warrant the use of sex as the criterion for 
employment would be if it could be shown that: (1) it was impracticable 
to develop a screening device that would identify males who possess the 
abilities that most women possess and (2) that these abilities are necessary 
to the carrying out of an essential feature of the business of an airline and 
not merely, as in the present case, something tangential to them. 

The Court also gave rather short shrift to the suggestion that customer 
preferences could be taken into account. Relying on guidelines to this 
effect of the Equal Employment Opportunity Commission, the Court held 
that the fact that the passengers of the airline prefer female stewardesses 
would not be a material consideration. With respect to the airline's 
argument that customer preference was not based on "stereotype thinking" 
but rather on an informed assessment of the superior capacities of female 
stewardesses to perform the "non-mechanical aspects" of the job, : the 
Court held that any such argument could not avail an employer in 
circumstances where the responsibilities in question are, again, tangential 
to the business conducted by an airline. 

The Court of Appeals in the Diaz decision thus does give some support 
to the idea that customer preference may play a. role in determining 



- 23 - 



the limits of the bona fide occupational qualification exception. 
It must be emphasized, howver, that the role envisaged for a customer 
preference is a narrowly restricted one. First, it was evidently the 
view of the Court of Appeals that the customer preference must be based 
on an informed judgment of the superior capacity of the members of one 
sex rather than the other with respect to the occupation in question. 
Without necessarily conceding that such superiority had been established 
in the Diaz case, the Court of Appeals reached its decision on the basis 
of the undisturbed finding of the trial judge that superiority had been 
demonstrated on the facts of that case. On the assumption that superiority 
was established, then, the Court of Appeals imposed further requirements 
which must be met before customer preference could be taken into account 
as a bona fide occupational qualification. First, the Court suggested 
that preference could be taken into account if it could be shown that 
all or substantially all men are inadequate with respect to the job performance 
in question. Alternatively, the customer preference could be taken into 
account if those men who were adequate in their performance of these 
aspects of the job could not be identified in a practicable manner and, 
further, if it could be shown that the performance of these tasks were an 
essential part of the business being carried on by the employer. In the 
Diaz case, the Court concluded that neither of these hurdles had been 
overcome by the defendant employer. Thus, the Court concluded in the follow- 
ing terms (at p. 389): 

While we recognize that the public's expectation of 
finding one sex in a particular role may cause some 
initial difficulty, it would be totally anomolous 
if we were to allow the preferences and prejudices 
of the customers to determine whether the sex 



- 24 - 



discrimination was valid. Indeed, it was, to a 
large extent, these very prejudices the Act was 
meant to overcome. Thus, we feel that customer 
preference may be taken into account only when 
it is based on the company's inability to per- 
form the primary function or service it offers. 

The facts of the present case fall considerably short of the 
test set forth in the Diaz case. There was no suggestion in the evidence 
led by the respondents that customer preference for female hairdressers 
is based on a judgment of the capacities of males in general to perform 
hairdressing services. Nor, indeed, was there evidence led which would 
establish that the existing clientele of the respondents would discontinue 
their patronage if a male hairdresser were employed on the premises. 
It follows, then, that no basis has been established in the evidence before 
this Board of Inquiry which would warrant application of bona fide occupational 
qualification exception of Section 4(6) of the Code. Indeed, the evidence 
strongly suggests the contrary. The evidence of Mr. Imberto indicates that 
neither males in general nor Mr. Imberto in particular suffer inadequacies 
with respect to the occupation of hairdressing. 

It is thus not necessary, in the present context, to reach a firm conclusion 
with respect to the applicability of the Diaz decision in the interpretation of 
Section 4(6) of the Ontario Code. The Diaz decision does indicate that there may 
be a range of situations in which customer preference may be a pertinent consideratio 
in the interpretation of Section 4(6) (see further, Developments in the Law - 
Employment Discrimination and Title VII of the Civil Rights Act of 1964 (1971) 
84 Harvard Law Review 1109, at 1176-1186). Even if the reasoning in that case be 
accepted, however, there has been no basis established in the present case for 
taking such preferences into account. 



t 



- 25 - 
VI 

For the foregoing reasons, I have reached the conclusion that the 
refusal of the respondents to entertain an application for employment from 
the complainant amounts to a refusal to employ an individual on the basis 
of sex, within the meaning of section 4(1) of the Ontario Human Rights 
Code. Having decided that the respondents have contravened the Code, 
this Board of Inquiry is then empowered by the Code in Section 14c to make 
an order requiring the respondents to do any act or thing that will 
constitute full compliance with the offended provision and "to rectify 
any injury caused to any person or to make compensation therefor." 

The complainant was evidently well qualified for the position for which he 
applied. No basis has been established by the respondents for believing that 
Mr. Imberto would not have been hired after an unbiased review of his qualifications. 

The evidence of the complainant, which I accept, indicates that as a 
result of the respondents' refusal to employ him, he remained unemployed 
for a period of seven weeks, during which time he would have earned $1,225.00 
at the rate of $175.00 per week advertised by the respondents. During that 
period, the complainant earned $300.00 through part-time employment and 
this figure should be deducted from the amount of the award. 

The complainant has also sought relief in the form of compensation for 
frustation and mental distress resulting from the discriminatory action of 
the respondents. Although the law of contract damages has been somewhat 
reluctant in the past to award compensation for injuries of this kind 
resulting from breach of contract, there would appear to be no reason why 
injuries of this kind could not be the subject of compensation under the 
Ontario Human Rights Code. There is no reason to interpret the phrase 



"any injury" in Section 14c (d) so as to exclude injuries to an individual's 
psychological well-being. Boards of Inquiry appointed under the Ontario 

1 

Human Rights Code have made such orders in the past. See, for example, 
Kim McGuire v. Orchard Park Tavern , on July 13th, 1979 (Soberman); 
Copenace v. West , November 23rd, 1979 (Ratushny) ; Blake v. Loconte , March 
12th, 1980 (Cumming) Cinkus v. Georgacopoulos , October 23rd, 1980 (Hunter) 
Shack v. London Drive-UR-Self Limited , June 7th, 1974 (Lederman) and 
Gabbidon v. Golas, July 9th, 1973 (Lederman). Further, it is of some 
interest to note that damages for psychological injuries have been awarded 
in a breach of contract cases dealing with employment contracts in recent 
years. See Cox v. Ph illips Industries Limited , [1976] 3 All E.R. 161 (Q.B.); 
Pilon v. Peugeot Canada Ltd. (1980), 29 O.R. (2d) 711 (H.C.). In principle, 
I am satisfied that there is no impediment to the granting of such awards 
under section 14c of the Ontario Human Rights Code, provided that it is 
clearly established that such injuries have been occasioned by the conduct 
of the respondents. 

In the present case, the evidence of the complainant is that his 
contacts with the respondent Vince Ruscica had occasioned considerable 
anger and frustration. Although I accept this evidence, I am not persuaded 
that the psychological injury thereby sustained was substantial in nature. 
Nonetheless, it is appropriate to make an award of some compensation for 
the distress caused by the conduct of Mr. Ruscica. In the circumstances of 
the present case, an award of $100. would be appropriate. 



- 27 - 

VII 
ORDER 

For the foregoing reasons, this Board of Inquiry makes the following 
orders: 

1. It is ordered that the respondents pay the complainant 
Nine Hundred and Twenty-five Dollars ($925.00) as 
compensation for the loss of employment opportunity. 

2. It is ordered that the respondents pay the complainant 
One Hundred Dollars ($100.00) as compensation for 
mental distress. 

3. It is ordered that the personal respondents, Vince 
Ruscica and Tony Ruscica, send forthwith a letter of 
assurance to the Ontario Human Rights Commission 
undertaking to comply with the Ontario Human Rights 
Code in the future and to ensure that the 
business conducted under the name, Vic and Tony 
Coiffure, will be conducted in accordance with 

the requirements of the Ontario Human Rights Code. 




I 



*